Daniel T. Kobil: High court suggests Arpaio guilty as pardoned

Saturday

Sep 2, 2017 at 5:00 AMSep 2, 2017 at 7:11 AM

—With his first presidential pardon last week of former Arizona sheriff Joe Arpaio, Donald Trump set an incredibly low bar for the exercise of his clemency authority. Many believe that the Arpaio pardon is a dry run for politically motivated, pre-emptive pardons of illegal behavior by those in Trump’s circle who are currently being investigated by Robert Mueller in his probe of illegal collusion with Russia.

Arpaio and other potential recipients of Trump’s political beneficence must remember, however, that a presidential pardon does not erase their misdeeds. In fact, the Supreme Court has said that acceptance of a pardon operates as an admission that they are guilty of the crimes for which they have or could be convicted.

Arpaio is a case in point. The former sheriff of Maricopa County, Arizona was found guilty in July of criminal contempt for defying a federal court order barring the unconstitutional racial profiling of immigrants and Latinos. Following issuance of the pardon, Trump and Arpaio sought to excuse his illegal actions. Arpaio contended that his conviction was the result of a “witch hunt” by holdovers from the Obama Justice Department. Trump defended the pardon by saying that Arpaio had “done a great job” and was treated “incredibly unfairly.”

In fact, Arpaio’s criminal conviction had nothing to do with President Obama and rested on strong legal grounds. The criminal proceeding was initiated because Arpaio had repeatedly and publicly flouted an order that he cease unconstitutional racial profiling. That order was issued by Murray Snow, a federal judge judge appointed by President George W. Bush. The contempt case was tried before another federal judge — appointed by President Bill Clinton — who after five days of testimony, ruled that Arpaio knew about Judge Snow’s order and that he "willfully violated” it. (Indeed, Phoenix officials have agreed to pay more than $50 million in order to compensate the victims of Arpaio’s unlawful actions).

Trump and Arpaio cannot have it both ways: Arpaio cannot be both innocent and excused for his crimes against the United States. According to the Supreme Court, acceptance of a presidential pardon constitutes a confession of guilt. That is why those who are wrongly convicted sometimes refuse to accept a pardon: their response understandably is that “I cannot be forgiven for something I did not do.” Indeed, the consequences of accepting a pardon may be an “even greater disgrace than [that] which it purports to relieve.” Burdick v. U.S. 236 U.S. 79 (1915).

When Gerald Ford’s attorneys offered Richard Nixon a pardon, they properly informed him that by accepting a presidential pardon, he would be admitting that he was guilty. And Nixon at first considered rejecting the Ford pardon because of the disgrace that flowed from accepting it.

Unfortunately, Trump either misunderstands or willfully misrepresents the consequences of the pardon, wrongly characterizing it as some sort of vindication of Arpaio. This misrepresentation is especially dangerous because Trump seems to be sending a message that government officers can “do a great job” by disregarding inconvenient parts of the Constitution, so long as they do so in a manner that pleases Trump and his nativist supporters.

The potential for subverting the Constitution raises a slim possibility that Arpaio’s pardon could be invalidated by the courts. Though the Supreme Court has construed the pardon power broadly, it has said the pardon power cannot be used in a manner that would “otherwise offend the Constitution” or be “constitutionally objectionable.”

This suggests that the courts might step in to prevent the president from undermining fundamental constitutional guarantees. Such action could be warranted, for example, if the president violated other provisions of the Constitution by pardoning widespread violations of federal voting rights laws in order to rig the electoral process by preventing opponents from casting ballots.

However, the judiciary for the most part has given presidents wide latitude when it comes to pardons. Thus, the most likely remedy for Trump’s highly political pardon of Arpaio is itself political: impeachment and removal of the president by Congress, or a resounding repudiation at the voting booth.

Daniel T. Kobil is a professor at Capital University Law School.

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